CONSTITUTIONAL BASIS FOR THE ENFORCEMENT … · CONSTITUTIONAL BASIS FOR THE ENFORCEMENT OF...

Author: ON Fuo

CONSTITUTIONAL BASIS FOR THE ENFORCEMENT OF

''EXECUTIVE'' POLICIES THAT GIVE EFFECT TO

SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA

http://dx.doi.org/10.4314/pelj.v16i4.1

2013 VOLUME 16 No 4

ISSN 1727-3781

http://dx.doi.org/10.4314/pelj.v16i4.1

ON FUO PER / PELJ 2013(16)4

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CONSTITUTIONAL BASIS FOR THE ENFORCEMENT OF ''EXECUTIVE''

POLICIES THAT GIVE EFFECT TO SOCIO-ECONOMIC RIGHTS IN

SOUTH AFRICA

ON Fuo

1 Introduction

For government to effectively govern, it needs instruments through which it can

pursue public purposes and defined objectives.1 Generally, laws (legislation/by-laws)

and policies have been identified, inter alia, as some of the types of instruments

used by government to govern.2 For example, the Local Government: Municipal

System Act3 provides that in governing a municipality a municipal council could

exercise its executive and legislative authority by developing and adopting policies.4

In general, governance instruments (including policies) are used to allocate

resources, to regulate people's behaviour (inter alia by creating incentives, rights

and duties) and to communicate government's understanding of society's collective

problems and its vision for the future to the public.5 Despite the importance of

policies as governance instruments,6 there seems to be uncertainty on the status

and possible basis for the enforcement of ''executive'' policies that give effect to

socio-economic rights in South Africa. In a recent article analysing a judgment of the

Oliver Njuh Fuo. LLB (Hons) (University of Buea, Cameroon); LLM (NWU, Mafikeng Campus).

Email: [email protected]. The author is currently completing his doctoral studies at the NWU

(Potchefstroom Campus). I want to thank Professor Louis Kotzé, Ms Rolien Roos and my Promoter, Professor Anél du Plessis, for commenting on the draft version of this article. I am

grateful to the two anonymous reviewers for their comments. 1 See Salamon 2000-2001 Fordham Urb LJ 1624; Linder and Peters ''Study of Policy Instruments''

33-34. 2 See Steytler 2011 SAPL 484-496; Salamon 2000-2001 Fordham Urb LJ 1623-1641; Patel "Tools

and Trade-offs" 363-368; Du Plessis 2010 Stell LR 274-275; Bovaird 2005 International Review of Administrative Sciences 217-221.

3 Local Government: Municipal Systems Act 32 of 2000. Hereafter, the Systems Act. 4 See s 11(3)(a) of the Systems Act. 5 See Peters and Van Nispen ''Prologue'' 3; Linder and Peters ''Study of Policy Instruments'' 34;

Salamon ''New Governance'' 1-41. 6 For details, see Thornhill South African Public Administration 124-125; Cloete Public

Administration and Management 91; Hanekom et al Key Aspects 25.


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Constitutional Court,7 Professor David Bilchitz clearly raised this problem when he

asserted that:8

At the outset, it is important to recognise that the principle of subsidiarity as expressed by the court relates to the legislative instruments that are enacted to realise rights. Yet, when the court dealt with the applicants’ claim, it focused on their arguments in terms of chapters 12 and 13 of the National Housing Code. The latter document is not legislation, but policy. The manner in which the court dealt with the case suggests that it treated these policy documents as legislation. The principle of subsidiarity thus seems to have been broadened to include policy documents. This extension seems to have no clear justification.

Although Bilchitz may have raised this problem from the point of view of the so-

called subsidiarity principle,9 this reveals a problem amongst some South African

legal scholars. The perception exist amongst some of them that policies cannot be

enforced in a court of law because they are ''policies'' and not ''law''.10

The purpose of this article is to critically reflect on the status and possible

constitutional basis for the enforceability of ''executive'' policies that give effect to

socio-economic rights in South Africa. It argues that the constitutional basis for the

enforceability of ''executive'' policies could be located inter alia in the positive duties 7 Nokotyana v Ekurhuleni Metropolitan Municipality 2010 4 BCLR 312 (CC) (hereafter Nokotyana).

See Bilchitz 2010 SALJ 591-605. 8 Bilchitz 2010 SALJ 598. Own emphasis. 9 For details on the origins of the subsidiarity principle, see Friesen 2003 Federal Governance 5-6;

Marquardt 1994 Fordham Int’l LJ 619-622. For a detailed discussion of the different versions of the principle of subsidiarity as developed by the Constitutional Court, see Van der Walt Property and Constitution 35-39, 46-112; Van der Walt 2008 Constitutional Court Review 99-116; Du Plessis 2006 Stell LR 207-231.

10 See Bilchitz 2010 SALJ 598; Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001

4 SA 501 (SCA) para 7 (hereafter Akani Garden Route); Minister of Education v Harris 2001 11 BCLR 1157 (CC) (hereafter Minister of Education) paras 10-11. I have run into debates with

some legal scholars who hold the view that ''policy'' cannot be enforced merely because it is ''policy''. It was against the backdrop of such a debate with Theunis Meyer that I was given an

opportunity by Professor Louis Kotze and other organisers of a conference on "The Regulation of

Invasive Species - European and South African Perspectives" (4-6 November 2012, Seminaris Campus Hotel, Berlin) to share some of the findings of my ongoing research. I gave a short

presentation entitled "Policies as a governance instrument in regulating invasive species: Comments from a South African constitutional perspective". In that presentation, I explained

what constitutes the core of this article in relation to the regulation of invasive species. Although not directly related to the status of ''executive'' policies, Klare explains that in South Africa, the

general tendency amongst conservative legal scholars and judges is to eschew "extra-legal

factors" when interpreting and enforcing law – especially the Constitution of the Republic of South Africa, 1996. See Klare 1998 SAJHR 158-172.


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of government (the state) imposed by sections 24(b), 25(5), 26(2) and 27(2) of the

Constitution to ''take reasonable legislative and other measures'' within the context

of available resources to give effect to relevant socio-economic rights.11 These

positive duties appear to amount to a constitutional delegation of authority to the

legislature and executive arms of government to concretise socio-economic rights.

As such, it could be argued that, in practice, where ''executive'' policies should give

content to socio-economic rights pursuant to powers delegated by original legislation

that covers the field of socio-economic rights, such policies should have the force of

law.12

In order to achieve the above objective, this article is structured in three main parts.

The first part draws from the work of some South African scholars on public

administration to distinguish various types of policies and their legal status. It

illustrates that when the executive adopts policies to give effect to legislative

provisions, these constitute what is referred to as "executive" policies, which have

the force of law. The second part explores the constitutional basis for enforcing

''executive'' policies with specific reference to those that give effect to socio-

economic rights in South Africa. It begins by providing a brief overview of the socio-

economic rights contained in the Constitution and an explanation of the

Constitutional Court's interpretation of the positive obligation imposed on

government to ''take reasonable legislative and other measures'' to give effect to

socio-economic rights. This is followed by a discussion on the powers of the

legislature to further delegate law-making powers to the executive in giving effect to

socio-economic rights. This discussion highlight the difficulty raised when the

executive exercises delegated law-making powers in the form of an ''executive''

policy instead of ''regulations'', for example. The third part of the article provides an

11 It should be noted that the right of access to land and environmental rights guaranteed in

sections 25(5) and 24 of the Constitution, respectively, are not expressly subject to progressive

realisation. In addition, section 24 of the Constitution does not qualify the environmental rights as subject to available resources.

12 The phrase "legislation that covers the field" is borrowed from Professor Van der Walt and used in this sense to refer to all legislation adopted to give effect to a socio-economic right in the Bill

of Rights. See Van der Walt Property and Constitution 40-43; Van der Walt” 2008 Constitutional Court Review 100-103, 106-111. For details on the classification of legislation, see Du Plessis Re-Interpretation of Statutes 25-61; Du Plessis 2011 PER 95-96.


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overview of a selection of court cases that were decided based on ''executive''

policies, to demonstrate that such policies could give effect to socio-economic rights

and that they are judicially enforceable.

2 Types of policies in South Africa

The idea of public policy-making originated from the United States of America and

became increasingly popular following Woodrow Wilson's seminal lecture in 1886,

which was later published as an article in 1887.13 Public policy-making focused on

separating politics from administration and stressed the role of bureaucrats in

managing public organisations and in ''translating policy ideals and aspirations into

legislation, services, programmes, regulations, and so on''.14 In South Africa, policy

studies ''is relatively recent and still evolving''.15 Due to the ambiguous nature of the

word ''policy''16 this section does not venture into the many contentious definitions of

the term17 but rather draws from the work of some South African experts on public

administration to distinguish the various types of policies in the country. This

distinction can help legal scholars understand the different policies that exist in the

country and their associated status. In addition, this distinction will provide a

foundation for a critical reflection on the possible constitutional basis for the

enforceability of ''executive'' policies with specific reference to socio-economic rights.

The first type of policy identified by Hattingh and Cloete is referred to as ''political

policies''.18 This is the ''primary type'' of policy that is covered in most academic

13 See Wilson 1887 Political Science Quarterly 197-222. For a detailed discussion on the evolution

of policy studies, see Wissink ''Policy Studies and Policy Analysis'' 56-74. 14 Gumede "Public Policy Making in South Africa" 165. 15 Gumede "Public Policy Making in South Africa" 166. For definitions of "policy studies" see De

Coning ''Nature and Role of Public Policy'' 6-7. 16 Akani Garden Route para 7. 17 For some definitions, see Gumede "Public Policy Making in South Africa" 166-167; Hattingh

Governmental Relations 55; De Coning ''Nature and Role of Public Policy'' 3-14. 18 Hattingh Governmental Relations 55; Cloete Public Administration and Management 94; De

Coning ''Nature and Role of Public Policy'' 15-16; Thornhill South African Public Administration 127.


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literature.19 Political policies can be represented as a plan of action adopted by a

political party or the government in power and presented to the electorate/public as

a series of value preferences which it seeks to implement upon election/re-election.20

Such policies cannot be enforced irrespective of their content and at best remain the

party's/government's vision for the future.21 This is the common view in academic

literature, which draws largely from the manner in which public policy developed as

a branch of public administration in the United States.22 According to Cloete, such

policies could be seen as election slogans or convenient propaganda documents

which may only be better formulated when tabled in Parliament as a Bill.23 From the

above explanation, it seems that political policies can be further sub-divided into

''government'' policies and ''party'' policies. Cloete indicates that when a political

party decides to take part in an election, it examines community life and ''on the

basis of its findings and the political beliefs of its members, it declares its stand on

various issues''.24 This initial declaration is purely a ''party policy'' and reflects the

beliefs of members of that political party.25 On the other hand, a government can

transform a ''party policy'' into a ''government'' policy, outlining the government's

vision for the country.26 Although government policies still adhere to party

philosophy, they generally aim at promoting the collective welfare of society as a

whole.27 Good examples of ''political'' policies include the ANC Freedom Charter,28

19 Hattingh Governmental Relations 55. The discussion by Gumede in Gumede "Public Policy

Making in South Africa" 166-183 is a typical example in the South African context. See also Mokale and Scheepers Introduction to Developmental Local Government 51.

20 Hattingh Governmental Relations 55; Thornhill South African Public Administration 127. 21 Hattingh Governmental Relations 55; Cloete Public Administration and Management 94. 22 See Venter "Administering National Government" 89-90; Gumede "Public Policy Making in South

Africa" 165-183. 23 Cloete Public Administration and Management 94; Thornhill South African Public Administration

128. 24 Cloete Public Administration and Management 94; Thornhill South African Public Administration

128. 25 Cloete Public Administration and Management 94; Thornhill South African Public Administration

128. 26 Cloete Public Administration and Management 94-95; Thornhill South African Public

Administration 127-128. 27 Thornhill South African Public Administration 128; De Coning and Cloete ''Theories and Models''

26. 28 The Freedom Charter was adopted at the Congress of the People in Kliptown on 26 June 1955.


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the RDP (Reconstruction and Development Programme),29 the recent New Growth

Path,30 and all ''White Papers''.

A second type of policy is referred to as ''executive policy''.31 When an elected

government translates a political policy into legislation, it then becomes the

responsibility of ''political executive institutions'' and ''executive office-bearers'' to

take the initiative to implement the legislation.32 Political executive institutions

include "the Cabinet, Provincial Executive Councils and the executive

mayor/executive committee of a municipal council".33 On the other hand, "executive

office-bearers" include ministers and deputy ministers.34 It is the responsibility of

executive office-bearers such as ministers to transform legislation into a form that is

passed unto various government departments for implementation.35 This becomes

relevant in instances where legislation explicitly requires a member of the executive

arm of government such as a cabinet minister to adopt specific policies in order to

give effect to specific legislative provisions.36 In other instances, legislation may

require that the executive give meaning to some provisions through interpreting and

delimiting the scope of application.37 Hattingh argues that "executive" policies are

therefore implementable and enforceable.38 Such "executive" policies should

complement, but ''cannot override, amend or be in conflict with" legislation.39 It is

29 See White Paper on Reconstruction and Development (1994) (GN 353 in GG 16085 of 23

November 1994). This example is cited by Cloete. See Cloete Public Administration and Management 94; Thornhill South African Public Administration 128.

30 National Planning Commission 2011 www.npconline.co.za. This example is cited by Cloete in Thornhill South African Public Administration 128.

31 Hattingh Governmental Relations 55; De Coning ''Nature and Role of Public Policy'' 15-16; Cloete Public Administration and Management 46-47.

32 Hattingh Governmental Relations 55; Cloete Public Administration and Management 46-47, 95-

96; Thornhill South African Public Administration 129. 33 See Cloete Public Administration and Management 92-94; Thornhill South African Public

Administration 126-127. 34 See Cloete Public Administration and Management 92-94; Thornhill South African Public

Administration 126-127. 35 Hattingh Governmental Relations 55. See Cloete Public Administration and Management 46-47,

95-96; Thornhill South African Public Administration 129. 36 See Cloete Public Administration and Management 95; Thornhill South African Public

Administration 129. 37 See Thornhill South African Public Administration 130. 38 See Hattingh Governmental Relations 55. This view is endorsed by Cloete in his distinction

between the functions of political executive institutions and administrative executive institutions.

See Cloete Public Administration and Management 46. 39 See Akani Garden Route para 7.


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also important to note that enforceable "executive" policies can also emanate from

negotiations between the executive (especially in municipalities) and the public

(community residents) with regard to the content of a socio-economic right that the

executive seeks to provide.40 Examples of "executive" policies in South Africa include

national and municipal indigent policies which specifically give effect to the socio-

economic rights of poor households by catering for their basic needs such as water,

sanitation and electricity.41 Municipalities are empowered to use their executive

powers, which include designing, adopting and implementing policies, when

administering local government matters listed in schedules 4B and 5B of the

Constitution.42

The National Framework for Municipal Indigent Policies (2006) remains a framework

executive policy which sets out minimum standards which municipalities must realise

for poor households.43 In terms of the obligations imposed on municipalities to

provide essential services to poor households,44 each municipality is required to put

in place the infrastructure required to ensure the supply of 25 litres of potable water

per person per day, supplied within 200 metres of a household and with a minimum

flow of 10 litres per minute (in the case of communal points) or 6000 litres of

potable water supplied per formal connection per month (in the case of a yard or

house connections). This is referred to as basic water supply facility.45 This

obligation speaks to the minimum content of the right of access to water for indigent

40 See Mazibuko v City of Johannesburg 2010 3 BLCR 239 (CC) (hereafter Mazibuko) paras 70-72

for similar reasoning. Gumede acknowledges that policies ''can come about through informal

processes and bargaining''. See Gumede "Public Policy Making in South Africa" 166. This type of agreement could emanate from "meaningful engagement" that was developed by the

Constitutional Court in Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg 2008 5 BCLR 475 (CC) (hereafter Occupiers of 51 Olivia Road). See paras 13-21. For more reading on the concept of meaningful engagement, see:

Chenwi 2011 SAPL 128-156; Muller 2011 Stell LR 742-758; Holness 2011 SAPL 1-36. 41 National Framework for Municipal Indigent Policies (2006). 42 See s 156(1)(a) of the Constitution and 11(3)(a) of the Systems Act. The matters outlined in

Schedules 4B and 5B of the Constitution include: electricity and gas reticulation; air pollution; municipal healthcare services; water and sanitation services limited to potable water supply

systems and domestic waste-water and sewage disposal systems; stormwater management; and municipal planning. For details, see s 156(1) read with Schedules 4B and 5B of the Constitution.

43 National Framework for Municipal Indigent Policies (2006) 6; Draft Framework for a Municipal Indigent Policy (2005) 1.

44 See National Framework for Municipal Indigent Policies (2006) 21-23. 45 National Framework for Municipal Indigent Policies (2006) 21; Draft Framework for a Municipal

Indigent Policy (2005) 17.


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households, subject to justification. The adequacy of this content in the City of

Johannesburg's indigent policy was a fact in issue in Mazibuko v City of

Johannesburg.46

Secondly, each municipality is obliged to sustainably manage a basic water supply

facility so as to ensure that water supply is available for at least 350 days per year

and not interrupted for more than 48 consecutive hours per incident and to

communicate to the public the importance of good water use, hygiene and related

practices. This is referred to as a basic water supply service.47 Although this

requirement can be rightly seen as a positive obligation imposed on local

government to take action that will ensure and sustain access to the right of access

to sufficient water, it can also be seen as imposing a negative obligation on

municipalities to refrain from actions that will impede the enjoyment of the right of

access to water.

Thirdly, each municipality is obliged to provide indigent households with a basic

sanitation facility which is safe, reliable, private, protected from the weather and

ventilated and which keeps smells to the minimum. 48 In addition, the basic

sanitation facility should be easy to keep clean, and should minimise the risks of the

spread of sanitation-related diseases by facilitating the proper treatment and/or

removal of human waste and wastewater in a manner that is environmentally

sound.49 Moreover, municipalities are obliged to sustainably operate the basic

sanitation facilities provided to the indigents. This includes the safe removal of

human waste and waste water from premises where this is appropriate and

necessary, and the communication of good sanitation, hygiene and related practices

to community members.50

46 Mazibuko v City of Johannesburg 2010 3 BLCR 239 (CC) paras 52-58, 61. 47 National Framework for a Municipal Indigent Policies (2006) 21; Draft Framework for a Municipal

Indigent Policy (2005) 17. 48 National Framework for a Municipal Indigent Policies (2006) 21; Draft Framework for a Municipal



Indigent Policy (2005) 17.


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Furthermore, in relation to electricity, the National Framework for Municipal Indigent

Policies obliges municipalities to provide indigent households with ''sufficient energy

to allow for lighting, access to media and cooking''.51 The content of electricity to be

supplied to indigent households is the national minimum of 50 kWh per household

per month. The National Framework for Indigent Policies acknowledges that this

basic level of electricity may not be sufficient to cover all basic needs, including

cooking.52 In addition, other experts have expressed serious doubts about the

adequacy of this amount of electricity in satisfying the basic needs especially of poor

households in urban areas, in the absence of other supplementary sources of

energy.53

The above remain basic service levels which are subject to revision and increase by

national government, in consultation with other spheres of government, periodically

in accordance with changing circumstances.54 Municipalities that can afford it are at

liberty to provide higher service levels.55 Basic service levels also vary across

settlement conditions in the sense that ''what is appropriate in a deep rural area will

not be appropriate in an inner city situation''. For example, while wells or public

standpipes may be appropriate to ensure water supply in a deep rural area, metered

household connections are more suitable to urban centres.56 Therefore, it is

expected that municipalities would give context specific content to local indigent

policies.57 What is important to note in the context of this article is that, although

indigent policies remain a "policy" adopted by the executive to give effect to some

socio-economic rights, they have a legal status and can be enforced in court. This

was the subject of litigation in the famous Mazibuko cases. The constitutional basis

51 National Framework for a Municipal Indigent Policies (2006) 22. 52 National Framework for a Municipal Indigent Policies (2006) 23. 53 For a detailed analysis, see Adam Free Basic Electricity; Pillay et al Democracy and Delivery;

McDonald Electric Capitalism. 54 National Framework for a Municipal Indigent Policies (2006) 23. 55 Draft Framework for a Municipal Indigent Policy (2005) 18-19. 56 Draft Framework for a Municipal Indigent Policy (2005) 19; National Framework for a Municipal

Indigent Policies (2006) 23-24. 57 The Constitutional Court has held that, in giving effect to socio-economic rights, the social and

historical context should be taken into account, because what is appropriate in rural areas may

not be appropriate in urban areas, for example. See Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC) (hereafter Grootboom) paras 22-25, 37.


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for the enforcement of executive policies will be explored in the second part of this

article with specific reference to socio-economic rights.

The third type of policy is ''administrative''.58 For an executive policy emanating from

''the highest authority to be duly implemented'', it must be accompanied by an

administrative policy to guide government departments and municipalities on the

practical steps to be followed in effectively and correctly implementing that executive

policy.59 From this angle, Hattingh perceives ''administrative'' policy as a third genre

of policy which is unenforceable per se.60 In order words, these are internal policy

documents or administrative guidelines which may have the force of law and give

directions on how sub-ordinate staff members should approach certain tasks.61

Examples of such guidelines could include the various Integrated Development

Planning Guidelines62 and Guidelines for the Implementation of the National Indigent

Policy.63 Although administrative policies are not enforceable per se,64 their

implementation constitutes administrative action which can be subjected to judicial

review. 65

This researcher believes the above classification of policies and the discussion that

follows may help in clarifying the confusion surrounding the status especially of

executive policies that give effect to socio-economic rights in South Africa and the

basis for their enforcement. This is important given the fact that, just as in most

58 Hattingh Governmental Relations 55; De Coning ''Nature and Role of Public Policy'' 15-16. 59 See Hattingh Governmental Relations 55; Cloete Public Administration and Management 96-97;

Thornhill South African Public Administration 131. 60 Hattingh Governmental Relations 55. 61 See Hattingh Governmental Relations 55; Cloete Public Administration and Management 96-97;

Thornhill South African Public Administration 131; Baxter 1993 Administrative Law Reform 177. 62 See for example DPLG Date Unknown iphone.cogta.gov.za. 63 Guidelines for the Implementation of the National Indigent Policy by Municipalities (2006). 64 Hattingh Governmental Relations 55. 65 See Hoexter Administrative Law 177-178; Baxter 1993 Administrative Law Reform 178. This will

be based on s 33(1) of the Constitution which guarantees everyone "the right to administrative action that is lawful, reasonable and procedurally fair". For a detailed discussion of the scope of

what constitutes administrative action under the Constitution and the Promotion of Administrative Justice Act 3 of 2000 (PAJA), see Hoexter Administrative Law 175-251. For

examples on how the Constitutional Court has interpreted and applied the right to administrative action that is lawful, reasonable and procedurally fair, see: Premier, Mpumalanga v Executive Committee, Association of State-aided Schools, Eastern Transvaal 1999 2 BCLR 151 (CC) paras

30-42; Walele v City of Cape Town 2008 11 BCLR 1067 (CC) paras 27-42. See also Plasket Fundamental Right to Just Administrative Action 81-108; Roux 2003 Democratisation 103-105.


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other modern states, there is an increasing delegation of powers to the executive

arm of government,66 which is the head of government administration, to make rules

and regulations in order to effectively implement legislation.67 Through the discharge

of its executive and administrative powers, the contact of the executive arm of

government with society in general is ever-present. As Woodrow Wilson once

asserted, "administration is the most obvious part of government; it is government

in action, it is the executive, the operative, the most visible side of government".68

Due to the increasing delegation of regulatory powers to the executive, the

executive and administrative arm of government has witnessed remarkable growth

in importance, performing most of the "minor" legislative functions of parliament.69

Although this may not sit well with the traditional application of the doctrine of the

separation of powers, this generally indicates that the executive performs both

administrative and legislative functions.70

3 The constitutional basis for enforcing "executive policies"

This part of the article critically reflects on the possible constitutional basis for the

enforceability of "executive" policies that give effect to socio-economic rights in

South Africa. It begins by identifying the socio-economic rights entrenched in the

Constitution.

3.1 Socio-economic rights in the Constitution

The socio-economic rights entrenched in the Bill of Rights include the rights of

access to housing;71 healthcare services, including reproductive health care;

66 See 3.3 below for examples of legislation delegating such authority to the executive. 67 Plasket Fundamental Right to Just Administrative Action 109-112. 68 Woodrow Wilson as quoted in Coetzee Public Administration 3. 69 Plasket Fundamental Right to Just Administrative Action 112. 70 For a detailed discussion of "administrative action" and the complexities of distinguishing

between the legislative and administrative functions of the executive, see Plasket Fundamental Right to Just Administrative Action 121-166.

71 Section 26 of the Constitution provides that: "(1) Everyone has the right to have access to

adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be


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sufficient food and water; social security and social assistance;72 further education;73

access to land on an equitable basis;74 environmental rights;75 and the right of

detainees and prisoners to conditions of detention that are consistent with human

dignity and to have at state expense, adequate accommodation, nutrition, medical

treatment and reading material.76 Furthermore, in Joseph v City of Johannesburg,77

the Constitutional Court used existing constitutional and legislative provisions that

oblige local government to provide basic services to community residents to

establish a (constitutional) right to electricity.78 The reasoning of the Court in Joseph

could also be interpreted to establish a (constitutional) right to sanitation,79

independent of other related but self-standing rights.80 However, in Nokotyana, the

Constitutional Court declined to make a finding on the applicant's submission that

the right to sanitation is integral to the constitutional right of access to adequate

housing.81

evicted from their home, or have their home demolished, without an order of court made after

considering all the relevant circumstances. No legislation may permit arbitrary evictions". 72 Section 27 of the Constitution provides that: "(1) Everyone has the right to have access to- (a)

healthcare services, including reproductive health care; (b) sufficient food and water; and (c)

social security, including if they are unable to support themselves and their dependents, appropriate social assistance. (2) The state must take reasonable legislative and other measures,

within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment".

73 Section 29(1)(b) of the Constitution provides that: "Everyone has the right - to further education,

which the state, through reasonable measures, must make progressively available and accessible".

74 Section 25(5) of the Constitution provides that: "The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain

access to land on an equitable basis". 75 Section 24 of the Constitution provides that: "Everyone has the right – (a) to an environment

that is not harmful to their health or well being; and (b) to have the environment protected for

the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure

ecologically sustainable development and use of natural resources while promoting justifiable economic and social development".

76 See s 35(2)(e) of the Constitution. 77 Joseph v City of Johannesburg 2010 3 BCLR 212 (CC) (hereafter Joseph). 78 Joseph paras 34-40. In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes

2009 9 BCLR 847 (CC) (hereafter Residents of Joe Slovo Community), Justice Sachs indicated that the socio-economic rights obligations established by the Constitution and legislation create a

special cluster of legal relationships between municipalities and homeless people occupying municipal land. See paras 343-344.

79 See Joseph paras 34-40. 80 Nokotyana paras 46-49. 81 Nokotyana para 47.


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As will become evident in the discussion that follows, the socio-economic rights

contained in the Constitution are abstract entitlements which become meaningful

entitlements only when government adopts legislation, policies, plans and

programmes to give effect to them.82 Without these processes of translation, the

socio-economic rights remain vague guarantees.

3.2 The duty to take "reasonable legislative and other measures"

The abstract nature of socio-economic rights entrenched in the Constitution requires

that they should be translated into concrete enforceable legal rights.83 In addition to

the duty to respect, protect, promote and fulfill socio-economic rights,84 the

Constitution imposes an obligation on the government to adopt "reasonable

legislative and other measures" to give effect to the rights guaranteed inter alia in

sections 24, 25(5), 26(1) and 27(1). Read jointly, these provisions create "an open-

ended" duty with significant initiative left in the hands of public authorities to realise

socio-economic rights.85 The task to concretise abstract constitutional guarantees

into concrete entitlements is supposed to be executed broadly by the legislature, the

executive and state administration, and their respective organs of state, through

various processes.86 In terms of local government, for example, this obligation

entails that, in addition to by-laws, local government should adopt policies, plans,

programmes and strategies that would contribute to the realisation of socio-

82 Brand "Introduction to Socio-economic Rights" 12, 14; Pieterse 2010 Law, Democracy and

Development 231-232. 83 Brand "Introduction to Socio-economic Rights" 12, 14; Pieterse 2010 Law, Democracy and

Development 231-232. 84 See s 7(2) of the Constitution. For a detailed discussion of these obligations, see Liebenberg

Socio-Economic Rights 80-87. 85 Du Plessis 2010 Stell LR 269. 86 Brand "Introduction to Socio-economic Rights" 12; Pieterse 2010 Law, Democracy and

Development 231-232. In reflecting on the limits of socio-economic rights litigation in realising

the transformative potential of the Constitution, Liebenberg recognises the primary duty of the legislature and the executive to adopt and implement measures that will lead to the realisation of

socio-economic rights with courts largely playing an interpretative but transformative role. She argues that: "An approach premised on the courts possessing all the answers on how best to

realise socio-economic rights, can also have negative repercussions for democratic transformation. The likely effect is to induce legislative and executive lethargy, and an abdication

of the primary role of these branches under the Constitution to give effect to socio-economic

rights guaranteed by formulating and implementing social legislation and programmes through broadly participative processes". See Liebenberg Socio-Economic Rights 40.


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economic rights.87 This is consistent with the executive and legislative authority of

municipalities generally outlined in section 11(3) of the Systems Act.

Although the term "reasonable" has not been defined by the Constitutional Court,88

the Court has outlined several conditions that must be satisfied before legislative and

other measures adopted to realise socio-economic rights can be considered to be

reasonable.89 Firstly, according to the Court, the government must put in place

comprehensive legislation, policies and programmes to realise socio-economic

rights.90 Such legislation, policies and programmes must be reasonable from

conception to implementation and must be backed by a strong commitment to

realise socio-economic rights.91

Secondly, in view of the fact that the Constitution creates three distinct but

interrelated and interdependent spheres of government92 tasked inter alia with the

same constitutional mandate to realise constitutional rights through a system of co-

operative governance,93 reasonable legislative and other measures aimed at realising

constitutional socio-economic rights must clearly allocate responsibilities and tasks to

the different spheres of government and ensure that appropriate financial and

human resources are available to execute assigned responsibilities.94 Responsibilities

should be allocated after consultation between all spheres of government and must

be guided by national framework legislation.95

Thirdly, the legislative and other measures adopted by government must establish

coherent programmes directed towards and capable of progressively realising socio-

87 Du Plessis and Du Plessis "Balancing of Sustainability Interests" 432. 88 Iles 2004 SAJHR 455-457 89 See Grootboom para 39-44. 90 Grootboom para 42. 91 Grootboom para 42. 92 Section 40(1) of the Constitution outlines the three spheres of government. 93 For details on the principles of cooperative government, see ss 40(2) and 41 of the Constitution;

Du Plessis 2008 SAPL 90-92; Layman 2003 www.sarpn.org 8; De Visser "Institutional Subsidiarity

in the Constitution" 2-3, 11-12; De Villiers and Sindane Cooperative Government; De Visser Developmental Local Government 209-254; Kirkby et al 2007 SAPL 144; Bekink Principles of South African Local Government Law 89-94.

94 Grootboom para 38. 95 Grootboom paras 40, 66.


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economic rights for all, within the state's available resources. The Court has

expressed the view that the "contours and content of the measures to be adopted

are primarily a matter for the legislature and the executive", who must ensure that

such measures are reasonable.96 This expression of the Court seems to suggest that

the executive can use the governance instruments at its disposal to determine the

content and scope/"contour" of socio-economic rights. The Court has indicated that

one of its main concerns is to ensure that there was meaningful engagement in the

design and implementation of such legislation and policies.97 In Occupiers of 51

Olivia Road, the Court linked the obligation of municipalities to involve communities

in local governance to "meaningful engagement".98 The Court defined meaningful

engagement as a two-way process in which the City of Johannesburg and those

about to become homeless would talk to each other meaningfully in order to achieve

certain objectives.99 It held that meaningful engagement has the potential to

contribute towards the resolution of disputes and to "increased understanding and

sympathetic care" if both sides are willing to participate in the process. The Court

noted that people may be so vulnerable that they may not be able to understand the

importance of engagement and may refuse to take part in the process. The Court

held that if this happens, a municipality cannot merely walk away but must make

reasonable efforts to engage with such vulnerable people and it is only if these

reasonable efforts fail that a municipality may proceed without appropriate

engagement. The Court stated that because the engagement process precisely seeks

to ensure that a city is able to engage meaningfully with poor, vulnerable or illiterate

people, that process should preferably be managed by careful and sensitive

people.100 It held that the failure of the City to engage with the occupiers was

contrary to the spirit and purport of the Constitution, a violation of the right to

human dignity, as well as other socio-economic rights obligations imposed by the

96 Grootboom para 41. Own emphasis. See also B v Minister of Correctional Services 1997 6 BCLR

789 (CC) (hereafter B v Minister) paras 32, 34. 97 See Residents of Joe Slovo Community paras 236-245; Doctors for Life International v Speaker

of the National Assembly 2006 12 BCLR 1399 (CC) paras 123-125, 129-134; Occupiers of 51 Olivia Road paras 14-15.

98 Occupiers of 51 Olivia Road paras 13-15. 99 Occupiers of 51 Olivia Road para 14. 100 Occupiers of 51 Olivia Road para 15.


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Constitution.101 Yacoob J stressed that where a municipality's strategy, policy or plan

is expected to affect a large number of people, there is a greater need for

"structured, consistent and careful engagement".102 The Court further observed that

the process of meaningful engagement can work only if both sides act reasonably

and in good faith.103 The Court cautioned that community residents who approach

the engagement process with an intransigent attitude or with unreasonable and non-

negotiable demands may stall the engagement process. Municipalities must not

perceive vulnerable groups and individuals as a "disempowered mass" but rather

encourage them to be pro-active rather than being purely defensive. The Court

expressed the view that civil society organisations that champion the cause of social

justice should preferably facilitate the engagement process in every possible way.104

Lastly, the Court indicated that secrecy is inimical to the constitutional value of

openness and counter-productive to the process of meaningful engagement.105 This

requires that in negotiating a policy, plan or programme that affects the rights of

communities, municipalities must furnish complete and accurate information that will

enable affected communities to reach reasonable decisions.106 The objectives of

meaningful engagement would differ from one context to another.107

In Residents of Joe Slovo Community, Justice Ngcobo asserted that in implementing

any programme giving effect to socio-economic rights, the key requirement which

must be met is meaningful engagement between the government and residents.108

This requirement flows from the need to treat community residents with respect and

care for their inherent human dignity as well as the need for government to

ascertain the needs and concerns of individual households.109 The process of

meaningful engagement does not require the parties to agree on every issue. What

is required of the parties is that they should approach the engagement process in

101 Occupiers of 51 Olivia Road para 16. 102 Occupiers of 51 Olivia Road para 19. Own emphasis. 103 Occupiers of 51 Olivia Road para 20. 104 Occupiers of 51 Olivia Road para 20. 105 Occupiers of 51 Olivia Road para 21. 106 Occupiers of 51 Olivia Road para 21. 107 Occupiers of 51 Olivia Road para 14. See also Residents of Joe Slovo Community paras 241-242. 108 Residents of Joe Slovo Community para 238. 109 Residents of Joe Slovo Community para 238.


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good faith and reasonableness and should understand the concerns of the other

side.110 Meaningful engagement can be achieved only if all the parties approach the

process in good faith and a willingness to listen, and where possible, to

accommodate one another. Justice Ngcobo stressed that the goal of meaningful

engagement is to find a mutually acceptable solution to the difficulties confronting

the government and citizens in the quest to realise socio-economic rights.111 The

need for structured and concerted engagement was equally emphasised by Justice

Ngcobo when he observed that different messages and perhaps conflicting

information from officials of all three spheres of government conveyed to residents

of Joe Slovo created misunderstanding and distrust in the minds of the residents

regarding the relocation project.112 Even though mutual understanding and

accommodation of each others' concerns remains the primary focus of meaningful

engagement, the decision ultimately lies with government. However, government

must ensure that the decision is informed by the concerns raised by the residents

during the process of engagement.113 In view of the above pronouncements from

the Constitutional Court, it has been argued that meaningful engagement has

emerged as a requirement of the reasonableness standard.114

In addition to the above requirements, the Constitutional Court has indicated that

reasonable measures directed towards realising socio-economic rights must take into

consideration the objectives of the Constitution, the multi-dimensional nature and

prevalence of poverty in South Africa and the capacity of institutions responsible for

implementing social legislation and policies.115 The legislation and policies adopted to

give effect to socio-economic rights must be balanced and flexible and must pay

attention to short-, medium- and long-term needs. Any social programme that

excludes, for example, a significant segment of society, especially the poor, cannot

be said to be reasonable.116 According to the Court, reasonableness must be

110 Residents of Joe Slovo Community para 244. 111 Residents of Joe Slovo Community para 244. 112 Residents of Joe Slovo Community para 247. 113 Residents of Joe Slovo Community para 244. 114 Liebenberg Socio-Economic Rights 153-154. 115 Grootboom para 43. 116 Grootboom paras 43, 56 and 63.


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understood in the context of the objectives and values of the Constitution and the

Bill of Rights as a whole.117 The Court reasoned that: 118

To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving the realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.

In view of the above, and by way of analogy, any challenge based on sections 24(b),

25(5), 26(2) and 27(2) of the Constitution in which it is argued that the state failed

to meet the positive obligations imposed on it by these constitutional provisions,

courts will have to simply decide if the legislative and other measures adopted are

reasonable, taking into consideration the available resources. According to the

Court:119

A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.

The above extract demonstrates the very flexible nature of the reasonableness

standard. It clearly indicates that government can use a variety of measures to

realise socio-economic rights. It should be stressed that the Court expressed the

view that the content and contours of socio-economic rights are best determined by

the executive and the legislature.120 In view of the fact that policy constitutes the

117 Grootboom para 83. 118 Grootboom para 44. 119 Grootboom para 41. 120 Grootboom para 41.


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main governance instrument for executive office-bearers, this implies that where the

executive adopts specific policies to give effect to socio-economic rights, the

executive acts within the prescripts of the Constitution. This constitutional context

informs Brand's argument that where the executive adopts policies that create

concrete socio-economic rights or entitlements to particular social goods for defined

categories of persons, it becomes easier for them to be claimed and for the courts to

uphold such claims.121 To borrow from Cloete, the Constitution "declares what action

specified institutions and office bearers are to take in accordance with prescribed

procedures".122 The duty on the executive to adopt measures, including policies, to

give effect to socio-economic rights is informed by the Constitution. What must be

stressed from the Court's jurisprudence for the purpose of our discussion is the

reality that the "contours and content" of the measures adopted to give effect to

socio-economic rights are primarily a matter for the legislature and the executive,

subject to the standard of reasonableness.123 In addition, the criteria used by the

Constitutional Court to determine the reasonableness of measures implemented to

give effect to socio-economic rights are non-exhaustive.124

3.3 Delegation of legislative powers to the executive in South Africa

In South Africa, the legislative authority of the national sphere of government is

vested in Parliament as set out in section 44 of the Constitution.125 In terms of the

provincial sphere of government, the legislative authority is vested in provincial

legislatures.126 Lastly, the legislative authority of the local sphere of government is

vested in municipal councils.127 As deliberative bodies, Parliament, provincial

legislatures and municipalities exercise original legislative authority and can adopt, of

their own volition, any law/legislation on any matter falling within their respective

121 See Brand "Introduction to Socio-economic Rights" 13-14; Mazibuko para 66; and Nokotyana

paras 47-51. 122 See Thornhill South African Public Administration 124. 123 See Grootboom para 41; B v Minister paras 32, 34 124 Liebenberg Socio-Economic Rights 223. 125 See s 43(a) read with s 44 of the Constitution. 126 See s 43(b) read with s 104 of the Constitution. 127 See s 43(c) read with s 156 of the Constitution.


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areas of competence.128 This is referred to as original legislation.129 Although it is not

expressly stated in the Constitution, just as under the Interim Constitution,130 it is

constitutionally permissible for (original) legislation adopted by these bodies to

contain enabling provisions which delegate powers to members of the executive

branch of government to adopt subordinate legislation (such as regulations) in the

process of implementation.131 This means that by virtue of enabling provisions in

legislation, a member of the executive branch of government or any other

functionary could be assigned powers to further make laws. For example, in

Constitutionality of the Mpumalanga Petitions Bill, Langa DP (as he then was) made

this clear when he asserted that:132

Regulations are a category of subordinate legislation framed and implemented by a functionary or body other than the legislature for the purpose of implementing valid legislation. Such functionaries are usually members of the executive branch of government, but not invariably so. A legislature has the power to delegate the powers to make regulations to functionaries when such regulations are necessary to supplement the primary legislation. Ordinarily the functionary will be the President or the Premier or the member of the executive responsible for the implementation of the law… The factors relevant to a consideration of whether the delegation of law-making power is appropriate are many. They include the nature and ambit of the delegation, the identity of the person or institution to whom the power is delegated, and the subject matter of the delegated power.

Although the power to delegate law-making functions to the executive branch of

government raises difficult questions relating to the traditional application of the

128 Du Plessis Re-Interpretation of Statutes 45-47. It should be noted that, apart from legislation

which may emanate from the deliberative procedures of Parliament, certain provisions of the Constitution prescribe that Parliament should adopt subsidiary constitutional legislation.

According to Du Plessis, subsidiary constitutional legislation should be enacted in order to "give more concrete effect to key provisions of the Constitution and the Bill of Rights. See Du Plessis

2011 PER 95-96. An example of such legislation is PAJA, that was enacted by Parliament to give

effect to s 33(3) of the Constitution. 129 Du Plessis 2011 PER 95-96; Du Plessis Re-Interpretation of Statutes 32-37, 45. 130 Constitution of the Republic of South Africa, Act 200 of 1993. 131 See Du Plessis Re-Interpretation of Statutes 37-41; Constitutionality of the Mpumalanga Petitions

Bill 2001 11 BCLR 1126 (CC) para 19; Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 10 BCLR 1289 (CC) (hereafter Executive Council, Western Cape Legislature) 51. See Bishop and Raboshakga "National Legislative Authority" 17-45;

Minister of Health v New Clicks South Africa (Pty) Ltd 2006 8 BCLR 872 (CC) paras 109, 113. 132 Constitutionality of the Mpumalanga Petitions Bill 2001 11 BCLR 1126 (CC) para 19.


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doctrine of separation of powers,133 this practice is inevitable in a modern state,

where parliament may be too busy with law–making processes and therefore unable

to attend to dynamic changes in society. Within the context of the Interim

Constitution, the Constitutional Court held in Executive Council, Western Cape

Legislature that for the purposes of good governance, it was constitutionally

permissible for an Act of Parliament to delegate law-making powers to the

executive.134 The Court stated that:135

In a modern state detailed provisions are often required for the purpose of implementing and regulating laws, and parliament cannot be expected to deal with all such matters itself. There is nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to other bodies. The power to do so is necessary for effective law-making. It is implicit in the power to make laws for the country and I have no doubt that under our Constitution parliament can pass legislation delegating such legislative functions to other bodies. There is, however, a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning plenary legislative power to another body.

Despite the above finding, there are limitations on the legislative authority that

parliament could delegate.136 The Constitutional Court has indicated that, in any

given case, the question of whether or not Parliament is entitled to delegate sub-

regulatory authority must depend on whether or not the Constitution permits the

delegation.137 To the Court, this is based on the fact that, "the authority of

Parliament to make laws, and so too to delegate that function, is subject to the

Constitution".138 This means that the decision as to whether Parliament may

delegate regulatory authority depends on the language and context of the

empowering constitutional/legislative provision.139 In any case, the exercise of sub-

regulatory authority by a member of the executive branch of government or any

133 The Court has indicated that the doctrine of the separation of powers cannot be construed as

absolute in the South African context. See Constitutionality of the Mpumalanga Petitions Bill 2001

11 BCLR 1126 (CC) para 25. 134 Executive Council, Western Cape Legislature para 51. 135 Executive Council, Western Cape Legislature para 51. 136 See Bishop and Raboshakga "National Legislative Authority" 17-45 to 17-47. 137 Justice Alliance of South Africa v President of the Republic of South Africa, Freedom Under the

Kaw v President of the Republic of South Africa, Centre for Applied Legal Studies v President of the Republic of South Africa 2011 10 BCLR 1017 (CC) (hereafter Justice Alliance) para 54.

138 Justice Alliance para 54. 139 See Justice Alliance paras 54-58.


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relevant functionary must be consistent with the empowering provision of the

Constitution or relevant legislation.140

Another important factor which must be taken into consideration is the nature and

extent of the delegation.141 The Court has indicated that the primary reason for

delegation is to ensure that the legislature is not overwhelmed by the need to

determine minor regulatory details. Delegation therefore relieves the legislature from

dealing with detailed provisions that are often required for the purpose of

implementing and regulating laws.142 Thus, the legislature may delegate subordinate

regulatory authority to the executive but may not assign plenary legislative power to

the executive.143 The legislature can therefore delegate "the determination of mere

minor detail" to the executive but cannot "shift" all its law-making power to the

executive.144 According to the Court, the legislature "may not ordinarily delegate its

essential legislative functions" to the executive in a constitutional democracy.145 This

limitation is informed by the delegation doctrine, which is informed by the doctrine

of the separation of powers. The delegation doctrine requires that law-making,

which is a proper function of the legislature, "should not be delegated excessively to

the executive branch of government".146 In addition, this restraint is intended to

balance "the need for efficiency in government against the need to avoid subverting

the constitutional legislative framework".147 It is acknowledged that the potential of

such transfer does not sit easily with the traditional notions of the doctrine of the

separation of powers.148

The above paragraphs demonstrate that, as under the Interim Constitution, it is

constitutionally permissible under the Constitution for the legislature to delegate

legislative authority to the executive. When such delegated authority is exercised it

140 See Justice Alliance para 60; Du Plessis Re-Interpretation of Statutes 38. 141 Justice Alliance para 61. 142 Justice Alliance para 65. See Du Plessis Re-Interpretation of Statutes 38. 143 See Executive Council, Western Cape Legislature para 51; Justice Alliance para 61; Bishop and

Raboshakga "National Legislative Authority" 17-45 to 17-47. 144 Justice Alliance para 62. 145 Justice Alliance para 62; Du Plessis Re-Interpretation of Statutes 49. 146 See Bishop and Raboshakga "National Legislative Authority" 17-45 to17-46. 147 See Bishop and Raboshakga "National Legislative Authority" 17-45 to17-47. 148 See Bishop and Raboshakga "National Legislative Authority" 17-49.


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has the force of law and the main question which should be addressed is whether

there is constitutional or legislative authority to delegate the power in question to

the executive (the minister, for example).149 As Bishop and Raboshakga put it, the

discretion of the executive to exercise sub-regulatory authority or draft laws remains

valid as long as ''it does not alter the text of the legislation" and "there is no specific

constitutional mandate for the legislature to act''.150 This means that the executive

has discretion on how it exercises its sub-regulatory power provided such power and

discretion does not conflict with the delegating legislation or the Constitution. There

is therefore no prescribed manner in which the executive should exercise delegated

regulatory authority except that it should comply with principles of delegating

legislation and the Constitution. The subsequent paragraphs show that this

discretion enables ministers to exercise sub-regulatory authority in the form of

''regulations'', ''strategies'', ''policies'', ''notices'' and even ''lists''.

In South Africa, original legislation that seeks to give effect to socio-economic rights

is replete with provisions delegating sub-regulatory authority to the executive. In the

area of social assistance, for example, section 5(1)(c) of the Social Assistance Act151

provides that the Minister of Social Development, in concurrence with the Minister of

Finance, can prescribe a category of persons who are not South Africans to be

beneficiaries of social assistance programmes.152 In addition, in terms of section 5(2)

of the Social Assistance Act, the Minister of Social Development in agreement with

the Minister of Finance may prescribe additional requirements in respect inter alia of

income threshold, means testing, and age limits. In terms of section 16(2) of Social

Assistance Act the minister may prescribe circumstances where persons absent from

South Africa can continue to receive grants. In the area of housing, the Housing

Act153 requires that the Minister of Human Settlements must determine national

housing policy which includes national "norms and standards" in respect of

149 See Executive Council, Western Cape Legislature paras 117, 122-125; Justice Alliance paras 54-

69. 150 See Bishop and Raboshakga "National Legislative Authority" 17-49. 151 Social Assistance Act 13 of 2004. 152 This power has not yet been exercised. 153 Housing Act 107 of 1997.


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housing.154 In terms of section 4(1) and (2), of the Housing Act, the national policy

must be contained in the National Housing Code (2009) which must also be

published by the Minister of Human Settlement.155 In the area of environmental

legislation, Chapter 2 of the National Water Act156 delegates powers to the Minister

of Water and Environmental Affairs to develop a national water resource strategy

(after consultation with society at large) to facilitate the proper management of

water resources and clearly states that this strategy "is binding on all authorities and

institutions exercising powers or performing duties under this Act".157 In addition, in

terms of section 56 of the National Environmental Management: Biodiversity Act

(NEMBA),158 the Minister of Water and Environmental Affairs has the powers to list

species that are in need of national protection.159 The "list" published by the Minister

of Water and Environmental Affairs pursuant to section 56 of NEMBA has the force

of law because in terms of section 57 of NEMBA, any person carrying out a restricted

activity involving listed threatened or protected species without a permit will be in

violation of the law. In terms of local government legislation, section 108(1) of the

Systems Act grants the Minister of the Department of Cooperative Government and

Traditional Affairs powers to set essential minimum or national standards, in

consultation with relevant stakeholders, for the provision of free services to poor

households in situations where framework legislation does not clearly define such

154 See s 3(2)(a) of the Housing Act 107 of 1997. 155 DHS 2009 www.dhs.gov.za. Volume 3 of the National Housing Code (2009) entitled "Financial

Interventions" details the extent to which government will provide individual housing subsidies to eligible citizens and permanent residents as well as the qualifying criteria. In addition, the

National Housing Code (2009) details different forms of housing assistance and eligibility criteria for farm workers. See Volume 5 (Rural Interventions: Farm Resident Subsidies) of the National Housing Code (2009) 23-30.

156 National Water Act 36 of 1998. 157 See Preamble of Chapter 2 and ss 5 and 6 of the National Water Act 36 of 1998. 158 National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA). 159 Section 56 of NEMBA provides that: "56(1) The Minister may, by notice in the Gazette publish a

list of – (a) Critically endangered species, being any indigenous species facing an extremely high

risk of extinction in the wild in the immediate future; (b) endangered species, being any indigenous species facing a high risk of extinction in the wild in the near future, although they

are not a critically endangered species; (c) vulnerable species, being indigenous species facing an extreme risk of extinction in the wild in the medium term future, although they are not a

critically endangered species; and (d) protected species, being of any species which are of such high conservation value or national protection, although they are not listed in terms of paragraph

(a),(b) and (c)". The list contemplated by s 56(1) was published on 23 February 2007. See Lists of Critically Endangered, Endangered, Vulnerable and Protected Species (2007) (GN R151 of GG 29657 of 23 February 2007).


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standards.160 These provisions amount to a delegation of the functions of the

legislature to the executive and illustrate the important role that must be played by

the executive in order to ensure that socio-economic rights entrenched in the

Constitution can be translated into reality.

Bishop and Raboshakga have indicated that the jurisprudence of the Court does not

provide clear criteria for the exercise of delegated legislative power.161 However, as

pointed out by the Supreme Court of Appeal, for the purposes of certainty in

governance, legislative authority delegated to the executive should preferably be

exercised by way of regulation or rules and not "policy" because the former

constitute legal instruments which are legally binding.162 However, the reality

remains that, the exercise of delegated legislative authority does not always find

expression as regulations and rules and has often been captured under other

nomenclatures such as codes, strategies, notices and policies. This reality was

recognised by the Supreme Court of Appeal in Akani Garden Route (Pty) Ltd when it

asserted that:163

The word 'policy' is inherently vague and may bear different meanings. It appears to me to serve little purpose to quote dictionaries defining the word. To draw the distinction between what is policy and what is not with reference to specificity is, in my view, not always very helpful or necessarily correct. For example, a decision that children below the age of six are ineligible for admission to a school, can fairly be called a "policy" and merely because the age is fixed does not make it less of a policy than a decision that young children are ineligible, even though the word "young" has a measure of elasticity in it. Any course or program of action adopted by a government may consist of general or specific provisions. Because of this I do not consider it prudent to define the word either in general or in the context of the Act. I prefer to begin by stating the obvious, namely that laws, regulations and rules are legislative instruments whereas policy determinations are not. As a matter of sound government, in order to bind the public, policy should normally be reflected in such instruments. Policy

160 This provision should be read in conjunction with the obligation imposed on municipalities by s

4(2)(j) of the Systems Act to "contribute, together with other organs of state, to the progressive realisation of the fundamental rights contained in sections 24, 25, 26, 27 and 29 of the

Constitution". 161 See Bishop and Raboshakga "National Legislative Authority" 17-47 to 17-50. 162 Akani Garden Route para 7. See Minister of Education paras 10-11; Minister of Health v New

Clicks South Africa (Pty) Ltd 2006 8 BCLR 872 (CC) para 611. 163 Akani Garden Route para 7. Own emphasis. See Minister of Education paras 10-11.


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determinations cannot override, amend or be in conflict with laws (including subordinate legislation). Otherwise the separation between legislature and executive will disappear.

From the above extract, it clear that the mere fact that an instrument is referred to

as a policy, code or strategy does not clearly determine its legal consequences.164

This potentially increases uncertainty in governance. According to Steytler, the most

important factor to be taken into consideration in determining the legislative effect

of a policy, code or strategy is the legislative intent of the executive.165 For example,

the delegated legislative authority to the Minister of Cooperative Government and

Traditional Affairs to prescribe minimum standards, in consultation with relevant

stakeholders, for the provision of free basic services to poor households finds

expression in the form of policy – indigent policies.166 In addition, a national water

resource strategy developed by the Minister of Water and Environmental Affairs

pursuant to Chapter 2 of the National Water Act167 is intended to be "binding on all

authorities and institutions exercising powers or performing duties under this Act".168

It is interesting to note that according to section 6(1)(b)(ii) of the National Water

Act, the content of the national water resource strategy must set out international

rights and obligations. It is obvious that if rights and obligations are spelt out in a

strategy, that strategy can be enforceable to the extent that it creates rights and

duties. Brand has indicated in the context of socio-economic rights jurisprudence

that policies aimed at giving effect to socio-economic rights inter alia define the

obligations of the executive arms of government in relation to those rights and that

they are enforceable to the extent that such policies create concrete rights or

entitlements.169

It is now established that although the Constitution is silent on Parliament's powers

to delegate law-making functions to the executive, this is (to an extent)

164 Steytler 2011 SAPL 488-489. 165 Steytler 2011 SAPL 488-489. 166 See National Framework for Municipal Indigent Policies (2006). 167 National Water Act 36 of 1998. 168 See Preamble of Chapter 2 and ss 5 and 6 of the National Water Act 36 of 1998. 169 See Brand "Introduction to Socio-economic Rights" 16-19. See also Pieterse 2010 Law,

Democracy and Development 234-235.


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constitutionally permissible for the purposes of good governance.170 However, there

is no prescribed manner in which the executive must exercise such powers. This

allows the executive discretion to decide on how it will exercise delegated legislative

authority. It appears that when the executive exercises delegated legislative

authority in the form of policies, strategies or notices, it acts in accordance with the

constitutional discretion it enjoys. The nomenclature of the instrument used by the

executive when it exercises delegated legislative powers should therefore not

automatically determine the legal effect thereof. If exercised in accordance with the

Constitution and delegating legislation in the form of a policy, such a policy should

be classified as an executive policy as now established by South African public

administration experts.

Based on the preceding paragraphs, it can be said that executive policies which seek

to realise socio-economic rights can be a direct response to the positive duties

imposed on the executive arm of government to adopt measures to give effect to

socio-economic rights or to give effect to the provisions of original legislation in the

field of socio-economic rights. Due to the fact that executive policies derive their

legal validity from the Constitution or delegated legislation, they should be

enforceable in a court. The Constitutional Court has established that where a policy

gives effect to constitutional socio-economic rights, individuals may challenge the

policy against constitutional norms.171 However, the claims of such individuals must

be clearly formulated as a constitutional challenge against the policy and not a direct

claim in terms of the Constitution.172 For example, where a municipal indigent policy

creates a concrete quantifiable right to social goods for the indigents within its

jurisdiction, individuals can claim only the quantified right so created by the indigent

policy except where they wish to challenge the constitutional validity of an indigent

policy. One of the implications of the ability to enforce (executive) policies that give

effect to socio-economic rights at especially the local government level is that it has

170 Executive Council, Western Cape Legislature para 51. 171 Brand "Introduction to Socio-economic Rights" 15-17; Bilchitz 2010 SALJ 594; Mazibuko paras

71-73; Nokotyana paras 46, 49-50. 172 See Bilchitz 2010 SALJ 594; Mazibuko para 73; Nokotyana paras 47-50; Du Plessis 2011 PER 95-

96. See also: Van der Walt Property and Constitution 35-39; Van der Walt 2008 Constitutional Court Review 99-104.


29 / 487

the potential of creating an avalanche of avenues through which socio-economic

rights claims could be located. For example, a community resident could claim a

right of access to sufficient water either based on the Constitution, on legislation or

on a municipal indigent policy. In the absence of awareness, it becomes difficult for

community residents to legally ground their claims. In other words, they may for

example demand that their right of access to water should be fulfilled and in the

absence of awareness it becomes difficult to identify if this claim should be grounded

in a municipal indigent policy, the national indigent policy, a by-law, the Water

Services Act173 or the Constitution.174

4 Review of cases where courts enforced "executive" policies

Although it may be difficult to draw broad conclusions from the Constitutional Court's

jurisprudence in particular, because it often considers it irrelevant to make

broad/binding decisions when dealing with constitutional matters,175 the ability and

willingness of courts to enforce executive policies is evident from a number of socio-

economic rights cases.

In B v Minister of Correctional Services,176 the applicants, HIV-positive inmates of

Pollsmoor Prison, approached the Western Cape High Court, Cape Town, with an

application for an order declaring inter alia that they and all HIV-positive prisoners

with a CD4 count of less than 500/ml should be entitled to receive anti-retroviral

medication at State expense as consistent with their section 35(2)(e) constitutional

right to adequate medical treatment.177 In the absence of "firm guidelines relating to

anti-retroviral treatment of HIV prisoners", and informed by the Department of

Correctional Services operating principle that "prisoners should have access to health

services and treatment equal to that provided to persons attending health facilities

173 Water Services Act 108 of 1997. 174 For a similar type of reasoning, see Hattingh Governmental Relations 56-57. 175 For example, the Constitutional Court has evaded all opportunities to give content to socio-

economic rights. See Grootboom paras 29-33. In Minister of Education, the Constitutional Court refused to make a decision on the legal effect of a notice published by the then Minister of

Education. See paras 10-13. 176 B v Minister of Correctional Services 1997 6 BCLR 789 (C). 177 B v Minister paras 1-4.


30 / 487

of provincial hospitals", the court expressed its willingness to extend the provincial

hospital's policy on the treatment of AIDS patients to prisoners.178 The provincial

hospital's policy defined the extent to which the executive was committed to

realising the right of access to adequate health services for members of the public

that were infected by AIDS. According to this policy, full-blown AIDS persons

attending public health facilities qualified for ARV treatment at the State's expense if

their CD4 count was less than 200/ml but more than 50/ml.179 The court indicated

that at the very least, HIV positive prisoners should receive the same treatment

enjoyed by members of the public who attend provincial public hospitals.180

However, considering that the main issue under contention was what constitutes

"adequate" medical treatment in terms of section 35(2)(e),181 the court indicated

that it lacked institutional competence to determine for medical doctors and the

executive the content of that right.182 The court held that since medical experts had

translated what constitutes adequate medical treatment for the first and second

applicants (including a prison doctor for the second applicant) through prescription,

they had given concrete form to the constitutional right of prisoners to adequate

medical treatment which it was prepared to uphold.183 The court ordered that anti-

retroviral treatment should be extended to the first and second applicant because

they were entitled to receive it on prescribed medical grounds.184 What is important

to note for current purposes is that in the absence of a challenge on constitutional

compliance, the court was willing to apply to prisoners the provincial hospital policy

on the treatment of members of the public infected with AIDS.

In Dudley Lee v Minister of Correctional Service,185 the Constitutional Court declared

that the respondents were liable for delictual damages suffered by the applicant

when he contracted tuberculosis (TB) while in detention because the responsible

178 B v Minister para 24. 179 B v Minister paras 24-25. 180 B v Minister para 24. 181 B v Minister para 41. 182 B v Minister paras 32, 34. 183 B v Minister paras 31, 35-36, 60. 184 B v Minister paras 60, 61. 185 In Dudley Lee v Minister of Correctional Services 2013 2 BCLR 129 (CC) (hereafter Dudley Lee).

For details on the facts of this case, see paras 1-10.


31 / 487

Correctional Services authorities failed to take preventative and precautionary

measures to prevent the applicant from contracting TB as required by Standing

Correctional Orders (SCOs).186 The SCOs were specifically adopted pursuant to

sections 2(a)-(b) and 12 of the Correctional Services Act187 to define health

measures that were supposed to be implemented by prison authorities in order to

cater for the health of detainees and prevent the spread of contagious diseases

amongst inmates.188 The Constitutional Court held that non-adherence to the SCOs

by responsible authorities violated inter alia the applicant's constitutional right to

medical treatment at state expense as required by section 35(2)(e) of the

Constitution.189 What is important to note in this context is the fact that the

Constitutional Court used obligations delimited by the executive through the SCOs to

establish negligence and general non-compliance with the constitutional right of

detained persons to receive adequate medical treatment by the Minister for

Correctional Services.

In Nokotyana, the Constitutional Court found that the municipality acted reasonably

in terms of its obligations to provide basic services to the applicants within the

context of Chapters 12 and 13 of the National Housing Code.190 According to

Chapter 13, the municipality could not invest in capital-intensive services in informal

settlements except after the MEC's approval for the upgrade of such informal

settlements. The main reason behind this policy position is to eliminate "fruitless and

wasteful expenditure" by municipalities.191 In addition, Chapter 12 of the National

Housing Code allows for essential assistance to be provided in cases of emergency

only subject to the determination of an emergency by the MEC.192 The Court decided

this case based on the nature of obligations that the executive had concretised for

municipalities, through policy, in order to contribute towards realising the

186 See Dudley Lee paras 37, 59-71 and 77. 187 Correctional Service Act 111 of 1998. S 11 of the Correctional Service Act defines the obligations

of the Department of Correctional Services re the rights of prisoners to receive adequate health care services.

188 For details on relevant provisions of the SCOs, see Dudley Lee para 9. 189 See Dudley Lee paras 61-65. 190 Nokotyana paras 42-44. 191 Nokotyana para 43. 192 Nokotyana paras 32-40.


32 / 487

constitutional right of access to adequate housing and other basic services. In this

connection and possibly overlooking the constitutional basis for enforcing executive

policies, Bilchitz criticised the Court for giving policy the force of legislation in the

Nokotyana case without a clear justification.193

In Mazibuko, litigation centred on the constitutional validity – reasonableness – of

the City's Free Basic Water policy and indigent policy, especially in terms of the

sufficiency of the quantity of water guaranteed therein for the purposes of human

dignity.194 This case demonstrates that, if the quantity of water guaranteed in those

policy documents was ''sufficient", residents could claim the supply of that quantity

as consistent with their constitutional right of access to sufficient water. This

thinking is discernable in the Constitutional Court's undecided position with regards

to the application of the principle of "constitutional subsidiarity" in relation to the

City's Free Basic Water policy.195

In Minister of Education v Harris, relying wrongly on section 3(4) of the National

Education Policy Act,196 the Minister of Education published a notice which imposed

that a learner may not be enrolled for grade one in an independent school if he/she

did not reach the age of seven in the same calendar year.197 The Court declared

ultra vires the policy decision of the Minister of Education, inter alia on the ground

that the National Education Policy Act did not empower the minister to impose

binding legal obligations on provinces, parents and independent institutions.198

However, it appears from the unanimous judgment written by Sachs J that had the

minister relied on section 5(4) of the South African Schools Act,199 which expressly

empowered him/her to determine the age at which pupils should be admitted into

independent institutions as well as public schools, such a policy determination would

193 Bilchitz 2010 SALJ 598. 194 See Mazibuko paras 6, 51, 71-77. 195 Mazibuko paras 73-76. Dugard has generally criticised the Constitutional Court judgment in

Mazibuko for failing to advance the interests of the poor. See Dugard ''Civic Action and Legal

Mobilisation'' 71-99; Dugard 2010 Review of Radical Political Economics 175-194. 196 National Education Policy Act 27 of 1996. 197 See Minister of Education paras 1-3. 198 See Minister of Education paras 10-20. 199 South African Schools Act 84 of 1996.


33 / 487

have had a binding legal effect.200 In Minister of Education v Harris the Court

therefore ruled on the illegality of a ministerial policy determination that was

grounded on a wrong legislation as opposed to the legal effect of a ministerial policy

determination that is consistent with legislation.201

The approach of the Constitutional Court on the enforcement of executive policies

giving effect to socio-economic rights in the above cases appears ad hoc. Its

jurisprudence in a number of cases - B v Minister of Correctional Services; Dudley

Lee; and Mazibuko suggest that, where an executive policy delimits and self-imposes

obligations on the executive arm of government, the Court will easily enforce such

self-imposed obligations. The same applies to instances where executive policies

create objective legal entitlements for the poor in particular. However, it seems that

the Court is slow to enforce executive policies when they purport to impose duties

on third parties. In enforcing executive policies in Nokotyana, the court does not

clearly explain that the basis for the enforcement of policies such as the Housing

Code lies in the fact that legislation expressly delegates powers to the executive to

adopt such a policy in terms of the Housing Act. To the contrary, in Harris v Minister

of Education the Court decides the case on the basis of delegated legislative

authority. It held that the notice published by the Minister could not be enforced

because it was ultra vires. Instead of clearly pronouncing that the policy would have

been binding if the Minister had relied on the correct legislation, Justice Sachs leaves

us to draw this inference from his comments.202

5 Conclusion

The purpose of this article was to critically reflect on the status and possible

constitutional basis for the judicial enforcement of executive policies that give effect

to socio-economic rights in South Africa. This article has demonstrated that the basis

for the enforcement of executive policies that give effect to socio-economic rights

can be situated in the Constitutional Court's interpretation of the positive duties

200 See Minister of Education paras 15-18. 201 See Minister of Education para 19. 202 See Minister of Education paras 15-18.


34 / 487

imposed on the government to "adopt reasonable legislative and other measures" to

give effect to relevant socio-economic rights. This article has argued and

demonstrated that these positive duties amount to a constitutional delegation to the

executive branch of government to use governance instruments such as executive

policies to give effect to socio-economic rights. A review of selected cases has

revealed that courts have enforced executive policies giving effect to socio-economic

rights based on the obligation imposed on government to adopt reasonable

legislative and other measures to realise socio-economic rights. This reasoning of the

Court is discernable from the cases reviewed: B v Minister of Correctional Services;

Mazibuko; Nokotyana; and Dudley Lee. In addition, it argued that where executive

policies are adopted pursuant to delegated legislative authority, they are enforceable

to the extent that they are consistent with relevant delegating legislation and the

Constitution. It has been established through a number of Constitutional Court cases

that although the Constitution does not expressly provide for the legislature to

delegate law-making powers to the executive, it is permissible for purposes of good

governance for original legislation to delegate regulatory powers to the executive:

Constitutionality of the Mpumalanga Petitions Bill; Executive Council, Western Cape

Legislature; and Justice Alliance. In addition, it has been established that the

executive often has discretion on how it exercises delegated law-making powers.

This could take the form of a regulation, policy, code or strategy.

This author hopes that the above exposition will help in clarifying the confusion

surrounding the legal status and possible basis for the enforcement of executive

policies that give effect to socio-economic rights in South Africa.


35 / 487

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SAJHR South African Journal on Human Rights

SALJ South African Law Journal

SAPL South African Public Law

SCOs Standing Correctional Orders

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ON FUO (SUMMARY) PER / PELJ 2013(16)4

CONSTITUTIONAL BASIS FOR THE ENFORCEMENT OF ''EXECUTIVE''

POLICIES THAT GIVE EFFECT TO SOCIO-ECONOMIC RIGHTS IN SOUTH

AFRICA

ON Fuo

SUMMARY

Although "executive" policies remain an important governance tool, there appears

to be confusion on the status and possible basis for their judicial enforcement in

South Africa. The aim of this article is to critically reflect on the status and possible

constitutional basis for the enforceability of "executive" policies that give effect to

socio-economic rights in South Africa. Based on the jurisprudence of courts and

some examples of "executive" policies, this article demonstrates that the

constitutional basis for the enforceability of "executive" policies could be located

inter alia in the positive duties imposed on government by sections 24(b), 25(5),

26(2) and 27(2) of the Constitution to "take reasonable legislative and other

measures" within the context of available resources to give effect to relevant rights.

This article argues that these duties amount to a constitutional delegation of

authority to the legislative and executive branches of government to concretise

socio-economic rights. In addition, this article demonstrates that where "executive"

policies give effect to socio-economic rights pursuant to powers delegated by

enabling provisions in original legislation that covers the field of socio-economic

rights, such policies may be perceived to have the force of law, thereby providing a

legal basis for their judicial enforcement.

KEYWORDS: Constitution, socio-economic rights, positive duties, delegation of

authority, executive policies and judicial enforcement.

Oliver Njuh Fuo. LLB (Hons) (University of Buea, Cameroon); LLM (NWU, Mafikeng Campus).

Email: [email protected]. The author is currently completing his doctoral studies at the NWU

(Potchefstroom Campus). I want to thank Professor Louis Kotzé, Ms Rolien Roos and my

Promoter, Professor Anél du Plessis, for commenting on the draft version of this article. I am grateful to the two anonymous reviewers for their comments.

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